Skip to main content

The Supreme Court and the Battle to End Abortion

Most members and leaders of the pro-life movement have long considered the appointment of supreme court justices to be the key to ending abortion. In contrast, abolitionists contend that the answer is not to focus on appointing justices who might overturn Roe v. Wade, but rather for the other branches of government to simply ignore that unconstitutional ruling altogether.

This fundamental difference in thinking results in substantially different approaches towards fighting abortion.

Generally speaking, pro-life organizations do not promote legislation that criminalizes abortion. They instead focus on changing the makeup of the federal court by electing conservative presidents, which they see as the most expedient way to overturn Roe v. Wade.

Troy Newman, President of Operation Rescue, recently sent an email to supporters along these lines, encouraging them to push for the appointment of Judge Neil Gorsuch to the bench, saying “If we can get Judge Gorsuch through the Senate, he will be the tie-breaking vote on so many critical maters [sic] – life, religious freedom, and personal liberty. He could be the deciding vote in overturning Roe v. Wade”.

But according to abolitionist attorney Bradley Pierce, this strategy has demonstrably failed. In a recent talk delivered at the Stand Fast in the Faith Conference, Pierce pointed out that the Roe court was the result of Republican judicial appointments. “Five of the justices who voted for Roe v. Wade were Republican appointees,” he said. “Abortion in the USA was brought to us by the National Republican Party.”

Moreover, Republican presidents appointed every justice to the court between Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992.  The Casey court was comprised of eight Republican appointees and just one Democratic appointee—Byron White. Ironically, White was one of the two justices to vote against Roe. Six new Republican-appointed justices had been added since Roe, and Harry Blackmun was the only remaining justice who had voted for it.  Casey seemed to present the perfect opportunity to overturn Roe. But that did not happen. “The court voted to uphold Roe vs. Wade, and 100% of the people who voted to uphold Roe vs. Wade were Republican appointees; every single one of them,” Pierce said.

“And not only do they vote to uphold Roe vs. Wade, they entrench it more deeply than ever, this so-called ‘right’ to an abortion in our country, and say you can’t even put an undue burden or substantial obstacle in a woman’s way,” he continued.  

Nonetheless, pro-life leaders cling to the hope that a Republican President will appoint new justices who will overturn Roe.

Pro-life apologist and co-host of the Life is Best television show Scott Klusendorf, speaking at a conference in 2015, stated, “The Federal courts have already decided in Roe vs. Wade, the Casey decision and others, that no unborn children have the right to life. The courts have already dictated that from on high as the default position.”  He went on to argue that supporting incremental legislation that makes exceptions for the murder of children in various circumstances was “limiting the evil done insofar as possible given the reality [we are] forced to deal with politically.”

Abolitionists, however, do not believe that they should only demand as much justice as the courts will allow. They argue that the Supreme Court has perverted the Constitution and that it is the duty of citizens and magistrates to defy tyrannical rulings.

“Whenever one branch of government begins to play the tyrant, all other branches (whether Federal, state, county, or local) have the duty then, more than ever, to uphold the Constitution and oppose that branch acting tyrannically – even if that branch is the Supreme Court,” said Matt Trewhella, author of The Doctrine of the Lesser Magistrates: A Proper Resistance to Tyranny and a Repudiation of Unlimited Obedience to Civil Government.

For this reason, pro-life legislators generally do not put forward bills without first asking the question “will this be thrown out by the Supreme Court?” Even this is often not effective, as many of these bills are still overturned by the Supreme Court despite being written in order to accommodate its demands.

On the contrary, abolitionists approach legislation by first asking “does this line up with the law of God?” and “is this consistent with the Constitution as it is actually written?” They contend that the Supreme Court does not have the authority to make laws, and that any court decisions repugnant to the written Constitution are void and without legal force.

Abolitionists cite decisions such as Buck v. Bell, Dred Scott v. Sandford, and Korematsu v. United States as perversions of justice that are all repugnant to the Constitution.  The Supreme Court has never overturned these decisions, but that has not stopped government officials in every branch from ignoring them nonetheless.